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Hewes v. Langston9/11/2003
is position at BellSouth to improperly access her telephone records. Langston further alleged that sometime before the divorce was finalized, Miller contacted George P. Hewes, III, an attorney with the law firm of Brunini, Grantham, Grower & Hewes, PLLC (the Brunini firm), which represented the tobacco companies, claiming to have proof of improper ex parte contact between Langston and Circuit Judge Billy Joe Landrum, the presiding judge in the tobacco case. Approximately one year later, the defendants in the tobacco case successfully pursued Judge Landrum's disqualification from that case.
. Subsequently, Langston came into possession of a letter, written on the letterhead of the Phelps Dunbar, LLP law firm, that accused Hewes and two attorneys with Phelps Dunbar of communicating with Miller about Langston's private telephone conversations regarding the tobacco litigation. The letter was signed "haunted friend"; however, the attorney whose printed name appeared on the official stationery, by affidavit, denied any knowledge of or involvement in the production of the letter.
. In June 1998, Langston filed the present suit in the Hinds County Circuit Court against BellSouth, B&W;(and its parent corporations) and the Brunini firm, as well as Hewes and Miller individually, alleging negligence, conspiracy to invade privacy and negligent infliction of emotional distress. During discovery, Langston sought to compel Hewes to produce numerous documents which Hewes claimed were privileged. After reviewing the documents in camera, the trial judge concluded that thirty-eight of the Items were not discoverable, but thirty were, and ordered that they be produced. Hewes filed an interlocutory appeal, and the trial court stayed the order pending our review.
. Because the trial judge's initial order requiring Hewes and B&W;to produce the documents was general in nature and did not make findings of fact and conclusions of law as to why each of the Items were discoverable, this Court was unable to conduct a proper review. For that reason, we remanded this case to the trial court to complete that task.
. On remand, the trial judge entered a six-page order which responded to our request. It contained a lengthy explanation of the facts and history of the case, and, generally, of the applicable law. However, we were not provided any specific explanation of the trial judge's basis for concluding why certain documents were discoverable and others were not. Having now reviewed the documents and trial judge's response, we reverse and remand.
STANDARD OF REVIEW
. The application of privilege is properly a mixed question of law and fact, with the circuit court's factual findings reviewed for clear error and its interpretation of the law reviewed de novo. United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994).
DISCUSSION
. Prior to addressing the merits of this appeal, we first consider Langston's contention that the Governor should have appointed two special justices to participate in deciding this appeal. Justices Waller and Diaz elected not to participate in this case. In her motion for rehearing, Langston argues that under Article 6, Section 165 of the Mississippi Constitution the Governor should have appointed two special justices to hear the case, "to assure that the Court maintained a full complement of justices." One of these vacancies, that of Justice Diaz, was the result of Langston's choice of Richard F. Scruggs for representation in this case. Attached to her motion is a copy of a petition to the Governor urging these appointments for rehearing.
. Certainly, under proper circumstances, the Gover
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